The WaPo Comprehends This Issue: There Is No Constitutional Crisis
Adding onto the post that my lovely, talented, and intelligent better half put up early this morning is this piece from the WaPo. (She cited it in a link at the end, but I think the lack of sleep was catching up with her. Here's a taste of the WaPo piece):
The FBI raid on Rep. William Jefferson's congressional office was an aggressive tactic that broke a long-standing political custom. But while it might violate the spirit of the Constitution, it might not violate the letter of the document or subsequent rulings by the Supreme Court, legal analysts say.
The issue could turn on whether a court finds that the items seized from Jefferson's office were related to such protected legislative activities as writing, researching and voting on bills. Other things could be fair game for the prosecution, analysts said.
"An official legislative act is immune, but interference with anything beyond that" is not covered by the constitutional provision that shields Congress from executive and judicial branch interference, said Michael J. Glennon, a former legal counsel to the Senate Foreign Relations Committee who teaches at Tufts University's Fletcher School of Law and Diplomacy.
The precise materials sought in the raid were blacked out in a publicly released copy of the search warrant, but Jefferson (D-La.) said in a court filing yesterday that FBI agents took two boxes of documents and copied computer hard drives.
Both the search warrant for Jefferson's office and the raid to execute it were unprecedented in the 219-year history of the Constitution. In that sense, they violated an interbranch understanding rooted in the separation of powers -- and, indeed, in the events of 1642, when King Charles I burst into Parliament and attempted to arrest five members of the House of Commons, triggering the English Civil War.
But the taboo against searching congressional offices was a matter of tradition, not black-letter constitutional law.
"It's really a matter of etiquette," said Akhil Reed Amar, a professor of constitutional law at Yale University. "I don't see any constitutional principle here."
To correct here though, it isn't the WaPo that agrees with her. That would be Charlie Lane, the writer of the piece. But Mr. Amar, in the last paragraph, is quite correct. There is no principle that states that people in Congress are completely immune from what law enforcement does. Are they essentially above the law? It may seem so, at times, such as with Cynthia McKinney's latest fiasco. Though it shoud be noted that she didn't commit a crime until she struck the Capitol police officer. Congressional members can bypass security gates.
The fact that both leaders in the House--Hastert and Pelosi--are joining forces to literally take this to Justice and the executive branch is positively ridiculous. And this might be one of my biggest gripes with members of Congress. Well over half of the people in Congress have law degrees, and no one ever uses theirs. They think they do, but they really don't.
But it seems that the message of "Don't play CYA games with the public" is starting to sink in as this AP report shows:
Some lawmakers are warning of a voter backlash against members of Congress "trying to protect their own" if party leaders keep escalating a constitutional dispute over the FBI's raid of a representative's office.
Yet not long after House Speaker Dennis Hastert and Minority Leader Nancy Pelosi demanded on Wednesday the bureau return documents it took, White House aides were in talks with Hastert's staff about the possible transfer of the material, perhaps to the House ethics committee, according to several Republican officials.
The goals of any transfer, they said, would be to deny the documents both to prosecutors and to Rep. Willliam Jefferson, a Louisiana Democrat ensnared in a bribery investigation, until the legal issues surrounding the weekend search of his office are resolved. The officials spoke on condition of anonymity, citing the confidential nature of the discussions.
I'm sorry, but if I were the official handling this investigation at Justice, I'd tell Hastert to get stuffed. This didn't violate any of the privileges and immunities of Rep. Jefferson. It is, as Marcie stated repeatedly last night, an ongoing investigation into whether or not Jefferson took bribes. The FBI has camera footgae of him doing so. So, in the House's view, should we simply allow him to continue serving despite the evidence accumulated thus far? And what Speaker Hastert must remember is that he, like every other member of the House, is up for reelection this year. This sort of behavior could translate into a backlash.
The confrontational approach by Hastert, R-Ill., and Pelosi, D-Calif., did not sit well with some colleagues.
"Criticizing the executive and judicial branches of our government for fully investigating a member of Congress suspected of criminal wrongdoing sends the wrong message and reflects poorly upon all of Congress," Rep. Barbara Cubin, R-Wyo., said in a statement. "They should not expect their congressional offices to be treated as a safe haven."
BINGO! Give Rep. Cubin the fuzzy bunny! Their congressional offices aren't pointed out in the Constitution as being free and clear of any investigation. That means that the FBI does have the right, and with Justice's backing, the authority to conduct a search of a congressman's office. The FBI has stated for the record that Jefferson wasn't cooperating. I'm guessing that Jefferson was hoping his privilege under Article I, Section 6 protected him against investigations. Nothing could be further from the truth. He can't be stopped in the halls of Congress, but he can sure as hell be nailed in his office. And that goes right out the window when it comes to his crime. Again, Marcie appropriately pointed out that bribery is a felony, thereby waving the privileges in Section 6.
A GOP colleague, Sen. David Vitter of Louisiana, said the public "will come to one conclusion: that congressional leaders are trying to protect their own from valid investigations."
Let's see here, Whitewater, Monica-gate, China-gate, Travel-gate, etc., and those were executive branch mishaps. The public didn't like former President Clinton too much during those days because we watched as his own attorney general ran interference for him. If Hastert and Pelosi think that this sort of grandstanding is going to play well with their respective bases, think again. It's already not sitting well. Marcie rarely launches such a pointed attack in the direction of the GOP. But when she does, she means it.
While some lawmakers contended the executive branch overstepped its authority, Senate Democratic leader Harry Reid of Nevada has declined to condemn the search.
"I'm not going to beat up on the FBI," said Reid, a frequent critic of the White House's use of executive power.
Their voices were in the minority on Capitol Hill in the wake of the 15-hour search during which agents collected evidence against Jefferson, an eight-term Democrat.
Historians said it was the first such search of a congressman's quarters in the more than two centuries since the first Congress convened.
Deputy Attorney General Paul McNulty said the raid was lawful and necessary. Justice Department officials have said Jefferson had refused to cooperate with the investigation.
RIGHT THERE! Jefferson had refused to cooperate with Justice. I'm guessing that Justice was cordial and polite about requesting the records, but when Jefferson told them to got take a flying leap off a rolling donut, Justice executed it's "fail-safe" option. That was obtaining a warrant, and providing it to Jefferson and his staff prior to executing it. This is perfectly legal. This violates no area of the Constitution, and the House leaders are just plain wrong.
In their rare joint statement, Hastert and Pelosi demanded that the FBI return the documents and that Jefferson then would have to cooperate with the investigation.
Um, I'm wondering why Jefferson still has his seat. It's clear from the video the FBI has that he is seen taking a bribe. So why hasn't he been brought up to the thics committee, and been removed from the committees he serves on. And if he refused to cooperate tfrom the start, what's going to make him cooperate now. This is a CYA, stalling game being played here, and it's irritating the hell out of me.
As evidence of Pelosi's lack of support for her fellow Democrat, she said he should step down from the powerful House Ways and Means Committee.
Jefferson filed a motion Wednesday asking the judge who signed the search warrant to force the FBI to return the seized items.
The congressman has refused to step down from the tax-writing committee and has acknowledged no wrongdoing.
Pelosi's curt letter to Jefferson, and the public nature of it, has riled a sizable bloc of her House troops — the 42-member Congressional Black Caucus. At private meetings with and without Pelosi on Wednesday, members of the roup grew emotional and complained that Jefferson was being singled out.
The congressional Black Caucus needs to STFU. This has nothing to do with race. If it were a white guy, I'd be just as vehement about getting to the truth. And it can't be found if all the House is going to do is try to exert some authority on Justice. They complain that the executive branch violated the Constitution by breaking the "separation of powers laid out within the Constitution, yet their own reactive response shows that they, too, are overstepping their boundaries when it comes to the separation of powers. Demanding the materials be returned, or handed over to the House Ethics Committee? Please. Shut up, and let Justice do its job.
They pointed out that another member under investigation, Rep. Alan Mollohan, D-W.Va., was forced to step aside as ranking member of the Ethics Committee but allowed to keep his seat on the Appropriations Committee.
The House Judiciary Committee chairman, GOP Rep. James Sensenbrenner of Wisconsin, announced a hearing next week, "Reckless Justice: Did the Saturday Night Raid of Congress Trample the Constitution?"
While I do like James Sensenbrenner, he's dead wrong. This didn't trample the Constitution. It's still intact, and the privileges enjoyed by the members of Congress still apply. But when Justice is conducting an investigation--particularly one in which the person in question ius an elected representative--cooperation is expected. Jefferson wasn't doing that. He was thumbing his nose at Justice and telling them to basically get over it. What was Justice to do? Discard an pertinent, ongoing, and equally relevant investigation? Did prosecutors drop the Cunningham case simply because "Duke" was a member of Congress? Hell no they didn't. And despite the fact that I also like him, Cunningham belonged in jail. He broke the law. (That's for the Lefty nutters out there that think we "rah-rah" the GOP too much. NO ONE is above the law, and the law is what we three here at the Asylum answer to.)
But Vitter released a letter to his own GOP Senate leaders asking them to stop saying that the FBI raid violated the Constitution.
"For congressional leaders to make these self-serving arguments in the midst of serious scandals in Congress only further erodes the faith and confidence of the American people," Vitter wrote.
And if they don't stop it, they're going to get bit by the base. They had better remember that the base is unhappy with their recent shenanigans. They've seen the Abramoff scandal explode all over Capitol Hill, and watched as lawmakers scrambled like a colony of roaches when the lights were turned on. They've seen the Cunningham fiasco go down, and watched as a man--an elected and well-respected congressman--admit to basically selling his vote to the highest bidder. And now we have William Jefferson. I know this may be a lot for the House to bear and even accept, but Justice has a job to do, and they're going to do it.
And they don't really care what Dennis Hastert and Nancy Pelosi have to say. They could give a rip less about William Jefferson's continued request through the courts for his documents back. They're following their investigation. 'Nuff said. But these people would be wise to remember that the base is watching this unfold, and if they're anything like Marcie and I you can bet they're not too happy about this little drama unfolding in Congress.
Publius II
Adding onto the post that my lovely, talented, and intelligent better half put up early this morning is this piece from the WaPo. (She cited it in a link at the end, but I think the lack of sleep was catching up with her. Here's a taste of the WaPo piece):
The FBI raid on Rep. William Jefferson's congressional office was an aggressive tactic that broke a long-standing political custom. But while it might violate the spirit of the Constitution, it might not violate the letter of the document or subsequent rulings by the Supreme Court, legal analysts say.
The issue could turn on whether a court finds that the items seized from Jefferson's office were related to such protected legislative activities as writing, researching and voting on bills. Other things could be fair game for the prosecution, analysts said.
"An official legislative act is immune, but interference with anything beyond that" is not covered by the constitutional provision that shields Congress from executive and judicial branch interference, said Michael J. Glennon, a former legal counsel to the Senate Foreign Relations Committee who teaches at Tufts University's Fletcher School of Law and Diplomacy.
The precise materials sought in the raid were blacked out in a publicly released copy of the search warrant, but Jefferson (D-La.) said in a court filing yesterday that FBI agents took two boxes of documents and copied computer hard drives.
Both the search warrant for Jefferson's office and the raid to execute it were unprecedented in the 219-year history of the Constitution. In that sense, they violated an interbranch understanding rooted in the separation of powers -- and, indeed, in the events of 1642, when King Charles I burst into Parliament and attempted to arrest five members of the House of Commons, triggering the English Civil War.
But the taboo against searching congressional offices was a matter of tradition, not black-letter constitutional law.
"It's really a matter of etiquette," said Akhil Reed Amar, a professor of constitutional law at Yale University. "I don't see any constitutional principle here."
To correct here though, it isn't the WaPo that agrees with her. That would be Charlie Lane, the writer of the piece. But Mr. Amar, in the last paragraph, is quite correct. There is no principle that states that people in Congress are completely immune from what law enforcement does. Are they essentially above the law? It may seem so, at times, such as with Cynthia McKinney's latest fiasco. Though it shoud be noted that she didn't commit a crime until she struck the Capitol police officer. Congressional members can bypass security gates.
The fact that both leaders in the House--Hastert and Pelosi--are joining forces to literally take this to Justice and the executive branch is positively ridiculous. And this might be one of my biggest gripes with members of Congress. Well over half of the people in Congress have law degrees, and no one ever uses theirs. They think they do, but they really don't.
But it seems that the message of "Don't play CYA games with the public" is starting to sink in as this AP report shows:
Some lawmakers are warning of a voter backlash against members of Congress "trying to protect their own" if party leaders keep escalating a constitutional dispute over the FBI's raid of a representative's office.
Yet not long after House Speaker Dennis Hastert and Minority Leader Nancy Pelosi demanded on Wednesday the bureau return documents it took, White House aides were in talks with Hastert's staff about the possible transfer of the material, perhaps to the House ethics committee, according to several Republican officials.
The goals of any transfer, they said, would be to deny the documents both to prosecutors and to Rep. Willliam Jefferson, a Louisiana Democrat ensnared in a bribery investigation, until the legal issues surrounding the weekend search of his office are resolved. The officials spoke on condition of anonymity, citing the confidential nature of the discussions.
I'm sorry, but if I were the official handling this investigation at Justice, I'd tell Hastert to get stuffed. This didn't violate any of the privileges and immunities of Rep. Jefferson. It is, as Marcie stated repeatedly last night, an ongoing investigation into whether or not Jefferson took bribes. The FBI has camera footgae of him doing so. So, in the House's view, should we simply allow him to continue serving despite the evidence accumulated thus far? And what Speaker Hastert must remember is that he, like every other member of the House, is up for reelection this year. This sort of behavior could translate into a backlash.
The confrontational approach by Hastert, R-Ill., and Pelosi, D-Calif., did not sit well with some colleagues.
"Criticizing the executive and judicial branches of our government for fully investigating a member of Congress suspected of criminal wrongdoing sends the wrong message and reflects poorly upon all of Congress," Rep. Barbara Cubin, R-Wyo., said in a statement. "They should not expect their congressional offices to be treated as a safe haven."
BINGO! Give Rep. Cubin the fuzzy bunny! Their congressional offices aren't pointed out in the Constitution as being free and clear of any investigation. That means that the FBI does have the right, and with Justice's backing, the authority to conduct a search of a congressman's office. The FBI has stated for the record that Jefferson wasn't cooperating. I'm guessing that Jefferson was hoping his privilege under Article I, Section 6 protected him against investigations. Nothing could be further from the truth. He can't be stopped in the halls of Congress, but he can sure as hell be nailed in his office. And that goes right out the window when it comes to his crime. Again, Marcie appropriately pointed out that bribery is a felony, thereby waving the privileges in Section 6.
A GOP colleague, Sen. David Vitter of Louisiana, said the public "will come to one conclusion: that congressional leaders are trying to protect their own from valid investigations."
Let's see here, Whitewater, Monica-gate, China-gate, Travel-gate, etc., and those were executive branch mishaps. The public didn't like former President Clinton too much during those days because we watched as his own attorney general ran interference for him. If Hastert and Pelosi think that this sort of grandstanding is going to play well with their respective bases, think again. It's already not sitting well. Marcie rarely launches such a pointed attack in the direction of the GOP. But when she does, she means it.
While some lawmakers contended the executive branch overstepped its authority, Senate Democratic leader Harry Reid of Nevada has declined to condemn the search.
"I'm not going to beat up on the FBI," said Reid, a frequent critic of the White House's use of executive power.
Their voices were in the minority on Capitol Hill in the wake of the 15-hour search during which agents collected evidence against Jefferson, an eight-term Democrat.
Historians said it was the first such search of a congressman's quarters in the more than two centuries since the first Congress convened.
Deputy Attorney General Paul McNulty said the raid was lawful and necessary. Justice Department officials have said Jefferson had refused to cooperate with the investigation.
RIGHT THERE! Jefferson had refused to cooperate with Justice. I'm guessing that Justice was cordial and polite about requesting the records, but when Jefferson told them to got take a flying leap off a rolling donut, Justice executed it's "fail-safe" option. That was obtaining a warrant, and providing it to Jefferson and his staff prior to executing it. This is perfectly legal. This violates no area of the Constitution, and the House leaders are just plain wrong.
In their rare joint statement, Hastert and Pelosi demanded that the FBI return the documents and that Jefferson then would have to cooperate with the investigation.
Um, I'm wondering why Jefferson still has his seat. It's clear from the video the FBI has that he is seen taking a bribe. So why hasn't he been brought up to the thics committee, and been removed from the committees he serves on. And if he refused to cooperate tfrom the start, what's going to make him cooperate now. This is a CYA, stalling game being played here, and it's irritating the hell out of me.
As evidence of Pelosi's lack of support for her fellow Democrat, she said he should step down from the powerful House Ways and Means Committee.
Jefferson filed a motion Wednesday asking the judge who signed the search warrant to force the FBI to return the seized items.
The congressman has refused to step down from the tax-writing committee and has acknowledged no wrongdoing.
Pelosi's curt letter to Jefferson, and the public nature of it, has riled a sizable bloc of her House troops — the 42-member Congressional Black Caucus. At private meetings with and without Pelosi on Wednesday, members of the roup grew emotional and complained that Jefferson was being singled out.
The congressional Black Caucus needs to STFU. This has nothing to do with race. If it were a white guy, I'd be just as vehement about getting to the truth. And it can't be found if all the House is going to do is try to exert some authority on Justice. They complain that the executive branch violated the Constitution by breaking the "separation of powers laid out within the Constitution, yet their own reactive response shows that they, too, are overstepping their boundaries when it comes to the separation of powers. Demanding the materials be returned, or handed over to the House Ethics Committee? Please. Shut up, and let Justice do its job.
They pointed out that another member under investigation, Rep. Alan Mollohan, D-W.Va., was forced to step aside as ranking member of the Ethics Committee but allowed to keep his seat on the Appropriations Committee.
The House Judiciary Committee chairman, GOP Rep. James Sensenbrenner of Wisconsin, announced a hearing next week, "Reckless Justice: Did the Saturday Night Raid of Congress Trample the Constitution?"
While I do like James Sensenbrenner, he's dead wrong. This didn't trample the Constitution. It's still intact, and the privileges enjoyed by the members of Congress still apply. But when Justice is conducting an investigation--particularly one in which the person in question ius an elected representative--cooperation is expected. Jefferson wasn't doing that. He was thumbing his nose at Justice and telling them to basically get over it. What was Justice to do? Discard an pertinent, ongoing, and equally relevant investigation? Did prosecutors drop the Cunningham case simply because "Duke" was a member of Congress? Hell no they didn't. And despite the fact that I also like him, Cunningham belonged in jail. He broke the law. (That's for the Lefty nutters out there that think we "rah-rah" the GOP too much. NO ONE is above the law, and the law is what we three here at the Asylum answer to.)
But Vitter released a letter to his own GOP Senate leaders asking them to stop saying that the FBI raid violated the Constitution.
"For congressional leaders to make these self-serving arguments in the midst of serious scandals in Congress only further erodes the faith and confidence of the American people," Vitter wrote.
And if they don't stop it, they're going to get bit by the base. They had better remember that the base is unhappy with their recent shenanigans. They've seen the Abramoff scandal explode all over Capitol Hill, and watched as lawmakers scrambled like a colony of roaches when the lights were turned on. They've seen the Cunningham fiasco go down, and watched as a man--an elected and well-respected congressman--admit to basically selling his vote to the highest bidder. And now we have William Jefferson. I know this may be a lot for the House to bear and even accept, but Justice has a job to do, and they're going to do it.
And they don't really care what Dennis Hastert and Nancy Pelosi have to say. They could give a rip less about William Jefferson's continued request through the courts for his documents back. They're following their investigation. 'Nuff said. But these people would be wise to remember that the base is watching this unfold, and if they're anything like Marcie and I you can bet they're not too happy about this little drama unfolding in Congress.
Publius II
posted by Syd And Vaughn | 8:56 AM
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